Provincial & Federal Statutes

Private Security & Investigative Services

Training & Testing

Private Investigator Test Preparation Guide

Section 3 - Provincial & Federal Statutes

Private investigators should have a basic understanding of the various statutes that apply to their field in Ontario, and should be familiar with criminal, civil, case and common law.

Privacy Laws

Private investigators frequently deal with the collection, storage, dissemination and destruction of highly sensitive information. They should be familiar with the procedures and regulations with respect to accessing and managing this kind of information, and should learn how to obtain government information according to the freedom of information laws that apply to the different levels of government. Private investigators working for organizations are also limited in terms of what third party personal information they can collect, use and disclose.

Personal Information Protection and Electronic Documents Act (PIPEDA)

PIPEDA is a federal statute, which sets out rules that govern the collection, use and disclosure of personal information by organizations engaged in commercial activities. A licensed business entity engaging in an activity regulated by the PSISA is likely subject to PIPEDA.

PIPEDA is a consent based statute. This means that licensed business entities are limited in what third party personal information they can collect, use and disclose when they do not have the consent of the person to whom the personal information belongs.

For example, many of the items included in a credit report are considered personal information and are protected by privacy laws. Therefore a credit check can be conducted with the consent of the subject.

Despite the foregoing, there are circumstances in which consent is not required for the collection, use and disclosure of personal information. For example, Regulation SOR/2001-7, enacted pursuant to PIPEDA, lists publicly available records, such as some judicial records, which are not subject to the restrictions on the collection, use and disclosure of personal information, as set out in the Act.

Also, according to Regulation SOR/2001-6, licensed business entities may receive or disclose personal information without the knowledge or consent of the individual to whom it belongs for the purpose of investigating the breach of an agreement or the contravention of a law if they are a corporation or other body:

that is licensed by a province to engage in the business of providing private investigators or detectives and that has a privacy code that is compliant with the Canadian Standards Association Standard CAN/CSA-Q830-96, Model Code for the Protection of Personal Information, as amended from time to time; and,

that is a member in good standing of a professional association that represents the interests of private investigators or detectives and that has such a code.

Freedom of Information and Protection of Privacy Act (FIPPA)

FIPPA governs access to records that are in the custody or under the control of the provincial government, designated agencies, colleges of applied arts and technology, and universities. The scope of this Act will be extended on January 1, 2012, to cover hospitals.

Municipal Freedom of Information and Protection of Privacy Act (MFIPPA)

MFIPPA is similar in purpose to FIPPA, except that it governs records that are in the custody or under the control of municipalities and some related institutions.

Private investigators should know about filing access requests for records that are subject to the above-noted Acts. Also, private investigators working for institutions that are subject to FIPPA or MFIPPA may be governed by one of these Acts, and may be limited in terms of what personal information they can collect, use or disclose.

Industry Standards Regarding Protection of Privacy

Private investigators should be mindful of privacy laws such as the ones described above when performing their work. Commonly, private investigators may be required to observe a subject’s daily activities, and should therefore be careful not to break any privacy laws.

For example, anyone who is in a public place does not have a reasonable expectation of privacy, and their actions may be photographed or documented on video. However, a person in their home has a reasonable expectation of privacy and an investigator should not go onto their property in order to peer into their windows to observe them. In this situation, the best practice would be to observe the subject from the street, or other public property or thoroughfare.

On the other hand, privacy becomes more of an issue if the subject is in their bathroom, for example, as opposed to their living room. Private investigators should exercise their judgment to determine when privacy becomes an issue, such as when the subject is at a gravesite, or participating in a religious observance, or when minors may be present.

If an investigator plants a wireless camera to transmit a scene to another location, the investigator should consider things such as whether or not the signal is encrypted, and whether the signal could be intercepted by an unintended source. This is another example where attention should be paid to PIPEDA and other privacy laws.

When videotaping, an investigator must remember that the integrity of the tape is paramount for court purposes; the original should not be altered in any way. There are restrictions in the Criminal Code about recording private conversations (see section 184 of the Criminal Code), so the best practice is to record without audio.

Privacy concerns can also arise as a result of GPS tracking - GPS devices should only be placed on a vehicle to track its location with the permission of the owner of the vehicle. For example, if an employee is driving a company vehicle and the client is the owner of that company, the client may give written permission to the investigator to place a GPS device on the vehicle.

Ontario Evidence Act and Canada Evidence Act

Private investigators may be called upon to present evidence in court, and should therefore be familiar with the relevant sections of the OntarioEvidence Act and the Canada Evidence Act. Also, they should also know the importance of documenting and preserving evidence and understand evidentiary concerns (e.g. acquiring pertinent information or when to stop an investigation).

Types of Evidence

Direct evidence: Direct evidence is the testimony of a person with respect to something that person witnessed directly. For example, when someone witnesses an assault and gives testimony that it was the accused who struck the victim, that is direct evidence. Of the different types of evidence which may be presented at a trial, direct evidence provided by a witness testifying is preferred. Various factors can affect the reliability of direct evidence including the ability of the witness to perceive what he/she is testifying about, the witness’ ability to recall the event and the witness’ ability to express and to describe what was observed.

Circumstantial evidence: This is evidence from which a fact can be inferred, but doesn’t stem from something that was witnessed directly. For example, the evidence of a witness who saw the accused stab the victim is direct evidence, while evidence that the accused owns the same kind of knife as the one used in the stabbing, the same type of gloves as the ones found beside the victim, and was seen in the vicinity shortly before the stabbing, is circumstantial evidence. To be reliable and useful, the circumstantial evidence must be sufficiently connected to a relevant fact to assist in either proving or disproving that fact.

Hearsay evidence: Where a witness presents a statement that was made to them by another person, who is not present at the trial. For example, if a witness gave evidence that at work on Tuesday, Mr. Jones told her he saw the accused hit the victim, then the statement of Mr. Jones is hearsay. Hearsay evidence may be of questionable reliability because the person who made the original statement is not present to be questioned. That person’s credibility and honesty cannot be tested and the truth of the statement cannot be assessed. Generally, hearsay evidence is not permitted if the witness could be summoned to attest to the observation of events. The admissibility of a statement based on hearsay could be challenged.

Admissions: Voluntary admissions made by an accused and reported by another witness fall outside the hearsay rule and may be admissible.

Documentary (demonstrative/illustrative) evidence: Documentary evidence is traditionally defined as “any written thing capable of being made evidence no matter on what material it may be inscribed”. This may include documents, books, cards, photographs, sound recordings, films, videotapes, microfiche, computer records, and other information recorded or stored by means of any device.

To determine the reliability of documentary evidence there are a number of factors related to the nature and quality of the document that should be considered. For example, a video recording maybe unclear in sound or in image, handwriting may be illegible or the condition of a document may make the contents impossible to accurately decipher. If the document is a videotape or picture, the court will want to be satisfied that it has not been tampered with or the images altered, and that what is shown is a true depiction of what the document is supposed to be showing. If the document is a paper document, it is important that all the information be readable or visible, and if it is a paper copy of the original, that the contents have not been altered.

For example, an investigator may be asked to conduct surveillance in a civil matter, where there is a dispute between neighbours over a property line. The investigator may be required to obtain photographs of the properties in question. In such civil proceedings, the investigator would be required to mark the illustrative evidence and log it into a report for future court hearings. Please note that illustrative evidence can also be known under different names (e.g. demonstrative or documentary evidence).

An investigator may also be called to the scene of an accident in a preliminary investigation at a client’s premises. The accident victim may have already been taken to the hospital by the time the investigator arrives, but there could be debris on the floor near the scene of the accident. The investigator would be required to obtain photographs of each area of debris for evidence purposes.

Real evidence: Real (physical) evidence refers to things presented to a court. Real evidence can include material objects, such as a weapon or item of clothing, and demonstrations or experiments conducted for the benefit of the court. As with other forms of evidence, the reliability of real evidence has to be assessed. Normally, this arises in relation to the identity of the object. To ensure the object presented as evidence is the same object related to the alleged offence, a witness would ordinarily be called to introduce the object, and to give evidence about where the object was found, how it was found, and where it has been kept since it was found. The need to establish the identity of the object is especially important if the object is somehow linked to the accused or to the commission of the offence.

For example, a private investigator may pick up a discarded item that has potential evidentiary value if it was seized in a public area such as a in a mall or plaza. There are no criminal or provincial laws contravened in this situation. Municipal by-laws are applicable when it pertains to a subject’s garbage that is located on the curb or on city property. Investigator should conduct the appropriate research to ensure that they are not in contravention of any federal, provincial or municipal laws if the subject’s garbage is retrieved from the curb or city property.

Trace evidence: Sometimes physical evidence is very small or even invisible to the untrained eye. This type of evidence is called trace evidence. It includes things like fingerprints or footprints in and around the area where a crime took place. It could also include very small physical objects like a hair or fibre from a piece of clothing. This type of evidence must be collected or photographed by experts.

Opinion evidence: Unlike evidence involving the personal knowledge of a witness or particular facts, opinion evidence is evidence of what a witness thinks, believes or infers regarding the facts in dispute. The opinion must be based on facts that have been received into evidence. The opinion should come from an expert witness who can provide an educated/professional opinion on the evidence being presented.

Unsworn evidence: Each witness called to give evidence at a trial, must do so under oath or solemn affirmation. In the event that a witness does not appear to understand the nature of an oath or a solemn affirmation, due to their age or apparent mental incapacity, the Crown should be consulted.

Additional Legislation

Trespass to Property Act

This Ontario law allows occupiers of private premises to determine who is or isn’t allowed on these premises. An occupier may also designate individuals who are authorized to act on the occupier’s behalf when it comes to allowing individuals on their premises. Private investigators should be familiar with this legislation and how it may impact their work.

According to subsection 2(1) of the Act, a person may be found guilty of a trespass offence if:

They enter a location where entry is prohibited.

They engage in an activity that is forbidden on the premises.

They refuse to leave when asked to do so by the occupier or an authorized person.

If entry is prohibited or restricted, notice must be given to the individual, either verbally, in writing, or with the aid of signs or markings.

Persons in violation of section 2 of the Act may be arrested without a warrant. A person who arrests someone under the authority of the Trespass to Property Act must contact the police as soon as possible and deliver the individual to a police officer.

Private investigators may also want to familiarize themselves with the following legislation: